Employees’ rights to take unpaid leave from work to deal with their own serious health problems or those of family members received a boost in recent years with changes to the Family and Medical Leave Act (FMLA).
In 2009, Congress amended the FMLA to give employees greater leeway to care for injured or ill family members in the military and to deal with the stresses and extra responsibilities that military deployment can cause in a family.
In February, the U.S. Department of Labor (DOL) published proposed regulations to reflect recent changes in the FMLA. Here’s a look at the proposed regs, courtesy of Mark Schickman and Cathleen Yonahara, both attorneys at Freeland Cooper & Foreman LLP in San Francisco.
FMLA Overview
To give a very brief summary, the FMLA was enacted in 1993 to allow eligible employees of covered employers to take job-protected, unpaid leave for up to 12 workweeks in a 12-month period for the birth of a child, to care for a spouse, parent, or child with a serious health condition, or to deal with their own serious health condition.
Generally, employers with 50 or more employees were covered, and employees had to work for a covered employer for at least 12 months and a certain number of hours during that time.
Later, the FMLA was expanded to allow eligible employees with a parent, child, or spouse in the military to take unpaid time from work for specific situations called “qualifying exigencies.” Eligible employees who are service members’ spouses, children, parents, or next of kin also may take up to 26 weeks of unpaid leave during a single 12-month period to care for a seriously ill or injured service member.
Proposed Rules
The proposed rules largely relate to two areas concerning military leave: 1) the scope of qualifying exigency leave and 2) expansions to the availability of military caregiver leave.
Broader Availability of Exigency Leave
Qualifying exigency leave may be taken in eight specific situations, including short-notice deployment, to arrange childcare, to make financial and legal arrangements, or to accompany a spouse in the military on rest and recuperation leave (R&R).
One proposed rule change would allow qualifying exigency leave for employees with family members in the regular armed services. Currently, it’s available only to employees with family members in the National Guard or Reserves.
The families of those in regular armed services would qualify for exigency leave if their service member is sent to a foreign country, meaning outside the United States, the District of Columbia, or a U.S. territory or possession, or deployed in international waters. Reassignment to a new duty station or deployment for training exercises wouldn’t be a reason for qualifying exigency leave.
Under the proposed rules, employees would be able to take up to 15 days for qualifying exigency leave to join a service member for R&R. Currently, up to five days are permitted for R&R. The proposed regulations also would cite funeral attendance as an example of a post-deployment activity covered by qualifying exigency leave.
The DOL asks whether 15 days is a sufficient maximum for R&R leave, whether seven calendar days is still enough leave for short-notice deployment qualifying exigencies, and whether new types of exigencies should be recognized because families of regular armed service members would be able to take this type of leave.
An employer may request certification for qualifying exigency leave. If the employee wants to take R&R leave and the employer requests certification, the employee must provide a copy of the family member’s R&R leave orders or other military documentation plus the dates of the leave. Employers also may require employees to furnish family members’ service duty orders or other documentation.
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Military Caregiving for Veterans
The proposed rules also make it possible for employees to take military FMLA leave to care for family members who are military veterans. Covered veterans may not have been dishonorably discharged and must have left military service within the five years before the eligible employee begins to care for them using military FMLA leave.
If employees begin caring for a veteran within the five-year period, their FMLA leave may extend beyond that period through the end of the applicable “single 12- month period.”
The definition of serious injury or illness would be expanded under the proposed rules to include aggravations of preexisting conditions caused during active duty and in the line of duty. Natural progressions of a disease or injury wouldn’t be covered in the proposed rules. This change applies to both current service members and veterans.
The proposed regs define “serious illness or injury” in three possible ways for veterans.
One definition recognizes a serious injury or illness suffered by a current service member that continues after she becomes a veteran. Under a second definition, a veteran has a serious illness or injury if she received a Department of Veterans Affairs (VA) service-related disability rating of 50 percent or more. The third definition recognizes other conditions the previous definitions don’t cover that are as severe.
The DOL was previously seeking comment on whether to also include veterans currently enrolled in the VA’s Program of Comprehensive Assistance for Family Caregivers, since 86 percent of them have disability ratings of at least 50 percent.
The proposed regulations allow healthcare providers who aren’t affiliated with the military to certify military caregiver leave. Employers would be able to seek second and third opinions from “civilian” providers but not from those affiliated with the military.
Tomorrow, we’ll look at proposed nonmilitary changes to the FMLA.
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